Hate Speech is Free Speech, Unfortunately

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The Daily Cal recently published an article that states that UC Berkeley spent almost $900,000 in fiscal year 2016–2017 on protest management, which typically is only allotted $200,000. As the next fiscal year looms, especially with Berkeley College Republicans just having invited conservative writer and speaker Ben Shapiro to speak on campus on September 14, it seems that the free speech controversy looming over the university is nowhere near coming to a close.

The controversy began in late 2016 when the announcement that conservative media personality Milo Yiannopoulos had been invited to speak at the university was met with heavy criticism, culminating in violent protests on the night of the event, causing UC Berkeley to cancel the appearance. Berkeley College Republicans, the group that had organized the event, released the now infamous statement on their Facebook page: “The Free Speech Movement is dead.”

The controversy has been sparked by other recent events on campus. When the BCR invited Ann Coulter to campus, threats of violence drew a heavy law enforcement presence to campus, despite Coulter ultimately cancelling her appearance. The Berkeley College Republicans also filed a lawsuit against the university, claiming that Cal tried to infringe its freedom of speech by making it more complicated and restrictive to schedule conservative speakers. The university recently filed to have the lawsuit dismissed on the grounds that it did not in fact violate free speech laws, but did what it had to do to accommodate speakers and maintain safety on campus and for all.

No one has attempted to unpack the free speech controversy in full, which is surprising since this has been a hot topic that’s made it to national news in recent months. So I’m going to try to do just that.

Free speech restrictions are based on the reaction the speech in question incites or has the potential to incite. These reactions are generally considered reasonable based on the circumstances, in that a reasonable person would have a negative reaction to the speech. These reactions include violence and chaos.

In the Supreme Court case Snyder v. Phelps, Albert Snyder, the gay father of a Marine killed in the Iraq War, sued Pastor Fred Phelps and the Westboro Baptist Church for intentional infliction of emotional distress when they picketed his son’s funeral with signs saying “God hates fags” and “Thank God for dead soldiers.” Several experts testified to the worsening of Snyder’s diabetes and severe depression as a result of the picketing. The Supreme Court sided 8–1 with Phelps and the Westboro Baptist Church, ruling that it was within their freedom of speech to picket, as they had followed all city guidelines for assembly, stayed well away from the funeral, and did not in fact interfere with the funeral itself. Justice Samuel Alito was the sole dissenter, writing that the First Amendment does not license “vicious verbal assault” and the “brutalization of innocent victims.”

It seems implicit in the Court’s argument that the actions of the Westboro Baptist Church do not qualify as slander or defamation, as these have been subject to free speech restrictions. And just because offensive speech causes emotional distress does not mean that it can be restricted.

Many in the nation sided with the dissent, and the ruling is indeed controversial. However, the controversy lies in the effect the speech had on Snyder. Should the Westboro Baptist Church’s picketing qualify as slander? This may be up for debate, but it does not seem that the Berkeley College Republicans’ invited speakers qualify. “God hates fags” at the funeral of a gay man’s son may be borderline slander, but Yiannopoulos making fun of transgender people at a ticketed event cannot qualify as slander, especially not in the legal sense. Because of this, it would seem that the speech of Milo Yiannopoulos, Ann Coulter, Ben Shapiro, and other conservative pundits known for making outrageous statements is indeed protected.

So, legally, these cases and those like them are protected by free speech laws. They don’t come close to the gray area apparent in Snyder v. Phelps. Ann Coulter and Milo Yiannopoulos’s speeches may be offensive and outrageous, but in the full context of the how and where they speak, they have the right to do so. But what’s the basis for the principle that speech should be protected at all costs, even speech that may be archaic and offensive?

The ACLU puts it well enough: “Over the years, the ACLU has frequently represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.”

Ultimately, the solution is to decrease violent protesting, and protesting that attempts to prevent someone from speaking. The saving grace of the Westboro Baptist Church’s actions is that they did not attempt to stop the funeral, nor did they protest violently and cause chaos. Of course those who do not agree with Yiannopoulos’s speech have the right to express that, but only if it also falls within the realm of protected free speech. And as we’ve seen, quite a lot falls under that realm.

Philosophy grad, lawyer in training. I write about society, politics, and the human experience, mostly based on reflections of my own humble life.

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